No shortcut to school reform

On Tuesday, in the closely watched case of Vergara v. California, Los Angeles County Superior Court Judge Rolf Treu struck down tenure and other job protections for California’s public school teachers, ruling that these measures violate California’s constitution. Treu concluded that such laws leave poor and minority students stuck with lousy teachers who can’t be fired. In doing so, he handed teacher unions their biggest legal defeat in memory.

Treu’s decision was supported by the evidence as well as common sense. Outdated tenure laws make it ridiculously hard for California schools to get rid of mediocre teachers, and kids pay the price. There are 275,000 teachers in California. Even if just one to three percent of teachers are lousy, as defense experts estimated, one would expect 3,000 to 8,000 teachers to be dismissed each year for unsatisfactory performance. Instead, the average is just 2. Meanwhile, Los Angeles superintendent John Deasy testified that it costs his school system between $250,000 and $450,000 to remove just one tenured teacher for poor performance.

Teacher tenure laws pre-date the advent of equal employment laws or modern hiring practices. These protections made some sense a century ago, as when New Jersey became the first state to adopt a tenure law in 1909, serving as a useful check on abusive management. In that era, after all, schools could and did routinely fire teachers for being pregnant, failing to conform to height and weight charts, being thought gay or holding the wrong political views. Today, while such practices are pretty much gone, the laws linger on.

Those laws have drifted from their original purpose. In 1948, the National Education Association‘s committee on tenure declared, “A good tenure law…protects the qualified teacher,” but also, “provides, at the same time, for the elimination of teachers who because of incompetence, or for other good reason, should be removed.” Today, that crucial balance has been lost.

Meanwhile, because a Democratic legislature with close ties to the California Teachers Association has shown no inclination to modify job protections, districts like Los Angeles have been stuck. Districts can try to do a better job policing the quality of new teachers, but can do little about those who are already tenured.

In the wake of Vergara, education reformers are planning a national publicity push. They’ll also be launching copycat lawsuits in a number of states. While the unusual wording of California’s constitution makes it hard to know how the precedent will travel, this could be the start of something big.

Ultimately, however, lawsuits aren’t the answer to America’s educational challenges. Sixty years of decisions since the U.S. Supreme Court’s ruling in Brown v. Topeka have shown that courts can ensure access to education, but do a poor job of promoting quality. Vergara may be a happy exception, but courts have a long history of failing to weigh costs and benefits and imposing requirements that prove bureaucratic and unworkable.

Courts can seem an easy, appealing shortcut. And democratic reform may be impossible today in the special interest haven of California. But the discipline of convincing voters and passing legislation has proven itself the most promising path to stable, sustainable and workable solutions. For now, the danger is that America’s schools are about to be caught in the back-and-forth of dueling lawsuits as the two sides compete to find friendly courts and favorable judges.

Frederick M. Hess is director of education policy studies at the American Enterprise Institute. His books include “A Qualified Teacher in Every Classroom?”